In Re: Student and Woburn Public Schools BSEA# 25-10015

 COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student and Woburn Public Schools                                            

BSEA# 25-10015

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes. 

On March 18, 2025, Parents filed a Hearing Request against Woburn Public Schools (“District” or “WPS”).  On March 19, 2025, a Notice of Hearing issued, scheduling the Hearing for April 22, 2025.  The Hearing was postponed for four business days at the joint request of the Parties, for good cause, to accommodate witness availability and was held as rescheduled on April 28, 2025. 

The official record of the Hearing consists of documents submitted by Parents and marked as Exhibits P-1 through and inclusive of P-10[1]; documents submitted by the District marked as Exhibits S-1 through and inclusive of S-10[2]; joint exhibits marked as Exhibits J-1 through and inclusive of J-3[3]; and approximately 2 hours of stenographically recorded oral testimony by 3 witnesses resulting in a 1-volume transcript.  The Parties presented oral closing arguments at the conclusion of testimony and the record closed. 

Those present for all or part of the proceedings were:

Mother

Father

Sean Goguen                           Attorney for WPS

Maureen Ryan                 Assistant Superintendent, WPS

Paul Tentindo                  School Psychologist, WPS

Renee Brissette              Out of District Coordinator, WPS

Melissa Lupo                             Stenographer, Advanced Court Reporting

Marguerite M. Mitchell     Hearing Officer

ISSUE IN DISPUTE:

1. Whether the District’s proposal to transport Student to and from school with a Buckle Buddy is appropriate? 

POSITIONS OF THE PARTIES:

Parents’ Position

Parents submit that requiring Student to be transported with a Buckle Buddy violates the Massachusetts restraint regulations and prohibits Student from receiving a free appropriate public education (FAPE).  Parents do not dispute that on January 22, 2025, Student, who was late arriving home, unbuckled his seat belt while his van was moving, walked forward, was physically aggressive to the van driver, then returned to his seat and re-buckled his seat belt.  They contend, however, that this single incident does not support the need for a Buckle Buddy over their objection.  Student was transported previous to and after January 22, 2025, by both the van and Parents, without a Buckle Buddy and without unbuckling his seatbelt while moving.  Parents believe that there are alternative, less restrictive, options that do not restrain Student inappropriately to address the concern of Student unbuckling his seatbelt.  They submit that other transportation companies would allow these alternative options.  Parents contend that the Buckle Buddy punishes Student for the January 22, 2025 incident and is being used to prohibit potential future behavior, contrary to the restraint regulations, rather than to prevent immediate harm during an incident, consistent with the restraint regulations.  They are also concerned that the Buckle Buddy will restrict Student’s ability to exit a vehicle during an accident, unnecessarily placing him in danger. 

District’s Position

The District disputes that a Buckle Buddy constitutes an illegal restraint.  The Buckle Buddy is a vehicle safety device used to assist with transporting students in a moving vehicle and thus is explicitly excluded from the definition of mechanical restraint in the state regulations.  Student requires a Buckle Budy to receive a FAPE based upon the incident of January 22, 2025.  Regardless of whether Student re-buckled his seatbelt that day, the fact remains that he unbuckled his seatbelt while in a moving vehicle, walked forward and became physically aggressive with the driver.  Parents’ alternatives do not prevent Student from moving around in a moving vehicle should he unbuckle himself again.  Although the District has the right to choose its transportation vendor, the underlying issue relates to safety, not the appropriateness of the vendor.

FACTUAL FINDINGS[4]:

1. Student is 16 and qualifies for special education under the disability categories of autism and intellectual impairment.  He has an intelligence quotient of 56.  He attends the Melmark New England School (Melmark) as a day student.  Student’s interests include Disney movies, scripting his favorite shows and movies, looking through picture books of previous community outings and events he has participated in, and taking “surprise” trips to pick out snacks within the school building or the community.  He enjoys sweet foods, other snacks and van rides.  (P-10; S-10; Mother, 39, 58-59).

2. Student’s current individualized educational program (IEP) is dated 2/13/25 to 2/12/26 (25-26 IEP).  It indicates Student “engages in low frequency, high intensity challenging behaviors (e.g., challenging behavior episode (sic)) when schedule (sic) is altered (e.g., full day of school on Thursday following a half day) or when there is a large environmental change (e.g. parent is traveling)”.  Student also “has a history of engaging in higher (sic) frequency of challenging behavior (e.g., aggression, property destruction, vocal protests) and non-compliance when working with less familiar adults”.  Further, Student is “distracted by auditory and visual stimuli in his environment (e.g., music, peers engaging in loud vocals)”.  (P-10; S-5; S-10).

3. The 25-26 IEP also notes that although Student’s rate of challenging behavior is low, the intensity during the episodes relating to property destruction and aggression is high.  The aggressions involve charging towards staff, kicking, head directed aggression, biting and hair pulling behavior, that “frequently take multiple, highly trained staff members to safely redirect [Student] and prevent injury”, and have the “potential to significantly harm others”.  Throughout the day, the school uses antecedent management strategies and reinforcement programs designed to increase Student’s flexibility and tolerance of changes in routines, schedules and unpredictable behavior by others.  (P-10; S-10).

4. During the school day, Student wears headphones due to his sensitivity to sound. The 25-26 IEP indicates that Student “[d]emonstrates difficulty attending to instruction within a louder environment”.  (P-10; S-10; Mother, 55).

5. Student’s most recent Functional Behavior Assessment (FBA), performed between November 4, 2024 and January 24, 2025, assessed Student’s challenging behaviors consisting of aggression, property destruction, or self-injury paired with flopping, screaming or crying within 10 seconds.  It concluded that the function of these behaviors is attempting to access control/routines, and to try to escape demands and correction.  The FBA recommends Student be provided with a “treatment package … [with] components of antecedent-based interventions … toleration programming … and reinforcement procedures” utilizing models and verbal prompts rather than physical prompts and a systemic increase to his criterion for reinforcement opportunities.  Additionally, it recommends teaching adaptive alternate behaviors using a token economy to be systemically faded to natural reinforcement with the goal of eliminating challenging behaviors.   Finally, the FBA recommends that its findings be used to develop effective, consistent consequence procedures, with continual reassessment to verify the function of Student’s behavior.  (S-5).

6. On January 21, 2025, Student’s Educational Coordinator at Melmark prepared an Educational Assessment: Part A.  The Assessment notes that “more recently it was common for [Student] to start a challenging behavior episode by eloping from the area (e.g., run from the classroom to the hallway, run out of the vocational room towards the front of the building, run from the van to the street), requiring multiple staff to follow him…”.  Mother confirmed her agreement as to the accuracy of this description of Student’s recent behaviors.  (S-6; Mother, 53-54).

7. Until January 2025, Student was transported to Melmark on a school-provided van.  He was the only student on the van.  In the past he had a monitor on the van, but this service was removed in 2024.  As of January 22, 2025, NRT was the transportation company transporting Student to and from Melmark.  (Mother, 39, 43-44. Brissette, 89).

8. Renee Brissette has been the Out of District Coordinator for the District for the past six years[5].  Ms. Brissette was part of the Team that removed the bus monitor from student’s transportation van in 2024.  She explained that she recommended the removal due to Student’s history of “successful transit to and from school” and due to the desire to increase Student’s independence with the hope of transitioning him to transportation on a van with other students.  Removal of the monitor was a first step towards that goal.  (Brissette, 86-87, 101-02). 

9. Typically, Student arrives home between 3:00 p.m. and 3:15 p.m.  (Mother, 40).

10. On January 22, 2025, at approximately 4:00 p.m., Student had not yet arrived home, and Parents had not been contacted about the delay.  Mother was panic-striken and called the van agency dispatch, but the call went to voicemail.  She then called Melmark, but the school was closed.  Finally, she texted a Melmark teacher who replied that Student had left on the van at approximately 3:10 p.m.[6].  Student ultimately arrived home at approximately 4:15 p.m.   The van driver did not communicate with Mother at all upon Student’s arrival.  (Mother, 40-41, 58-59).

11. After entering the house, Student informed Mother that “I hit her … I hit the bus driver”, but he did not share any further details or information despite Mother’s additional questions.  (Mother, 40).

12. On January 23, 2025, NRT picked Student up and transported him to Melmark without incident.  Mother is not sure if the driver that day was the same driver who drove Student home the day before.  She explained that since 2024, NRT has provided inconsistent drivers daily, and NRT is often late transporting Student.  (P-9; Mother, 41-42, 62-63).

13. After Student left for school, Mother contacted the District to ask about Student’s comments.  She received an email later that day confirming there had been an incident the previous day and there was a video of the incident.  The District also advised her that going forward Student would need to be transported to school with a Buckle Buddy.  Mother immediately replied that she did not consent to a Buckle Buddy and asked to see the video.  (P-4; S-8; Mother 41).

14. According to Ms. Brissette, a Buckle Buddy is commonly used with the students she supports.  When it is utilized, it is included in the student’s IEP.  (Brissette, 90).

15. A Buckle Buddy is not itself a lock.  It is a device that is placed over the seatbelt receiver prior to connecting the belt to keep the person wearing the seatbelt from easily depressing the receiver to release the belt.  Photographs and video instructions for two types of Buckle Buddies were submitted into the record.  One contains a cap similar to that used in medication bottles, that must be depressed and turned to release the Buckle Buddy and obtain access to release the seatbelt.  The other requires that something thinner than a finger (such as a car key, or another thin device like a comb or nail file) be inserted into a slot in the Buckle Buddy to depress the seatbelt receiver button.  (J-1; J-2; J-3). 

16. Student was transported home the afternoon of January 23, 2025, without incident and without a Buckle Buddy.  (S-8).

17. Paul Tentindo is the District’s School Psychologist[7].  He performed Student’s 3-year psychoeducational evaluation at Melmark on January 22, and January 23, 2025 and prepared a Psychological Assessment Report[8].  Although this evaluation is typically administered in one day, lasting about an hour, Mr. Tentindo broke it into two days.  Student initially appeared relatively comfortable and engaged appropriately with Mr. Tentindo, whom he had not met previously, and completed the first 4 subtests without incident.  About half-way through the evaluation, however, Student became visibly agitated and “lunged” towards Mr. Tentindo from the beanbag chair on which he was sitting.  Staff that were also in the room recommended a short break.  Mr. Tentindo suggested returning the following day, instead.  On the second day, Student fully participated and completed the evaluation.  He did not share anything with Mr. Tentindo on the second day (January 23, 2025) about his drive home the day before (January 22, 2025), and this incident is not mentioned in Mr. Tentindo’s report.  (S-4; Tentindo, 71-72, 80-84).

18. Having staff in the testing room was atypical but Mr. Tentindo explained it occurred in this case to provide Student with familiar people during the evaluation, given Student’s propensity to become frustrated and increase his behaviors when meeting new people or experiencing a change to his routine.  Prior to conducting the evaluation, a Melmark administrator had provided Mr. Tentindo with background information and context about Student, as well as information related to Student’s behavioral triggers.  Mr. Tentindo understood that Melmark wanted to ensure the testing environment remained safe and to avoid Student becoming unnecessarily frustrated, as that could result in what Mr. Tentindo was told could be “dangerous” behavior.  Such a preliminary discussion about the testing setting and behavioral protocols was also unusual, but Mr. Tentindo appreciated the information, as it helped him complete the evaluation.  (Tentindo, 72-75).

19. On January 24, 2025, NRT picked Student up and transported him to Melmark, again without incident.  (Mother, 41-42).

20. That morning Mother was at Melmark for an unrelated meeting, and a teacher asked her if she had changed her mind and consented to the use of the Buckle Buddy, as Student arrived at school with it in place.  Mother confirmed she had not changed her mind and advised Melmark she would take Student home that day.  She has transported Student to and from school since, and the District has reimbursed her for her mileage.  (P-4; S-8; Mother, 47).

21. On January 27, 2025, Mother viewed the video of the January 22, 2025, incident.  The video is approximately 15 minutes long and contains audio.  Student is riding in the van on the highway with only the driver during the entire video.  Student is generally sitting calmly, with his hands on his legs.  He communicates verbally with the driver, both initiating and responding to the driver’s communication.  The communication is often repetitive and is focused on the amount of traffic around them, Student’s belief that the driver will need to move over soon, and concerns they are stuck in the traffic.  The CB radio dispatch can be heard in the background throughout.  Student is not wearing any headphones.  After approximately nine and a half minutes, Student again states they are stuck in traffic and asks how they will get out.  The driver responds to say, “you just need to wait”, “just calm down … yes please” and “we are almost there, almost” Student states “OK, I’ll calm down”.  He repeats that and the driver responds, “thank you [Student’s first name]”.  Student then repeats “calm down” for the third time while unbuckling his seatbelt and rising out of his seat, whereupon he moves into and over the row of empty seats between himself and the driver and begins to slap the driver’s face and head and pulls on her hair, so that her head is pulled backwards impeding her view of the road.  The driver is visibly shaken and cries out to Student to stop.  After about 10 seconds, Student abruptly stops his physical aggressions, immediately returning to his seat and re-buckling himself, again sitting with his hands on his legs.  Student and the driver have no further communication for the remainder of the video. 

Although substantial traffic is around them, the driver never stops driving throughout or after the incident, does not appear to swerve the vehicle, and, although she loses her view of the road when Student pulls her hair, she never pulls over.  After the incident, she removes her sunglasses and continually glances at Student in the rearview mirror.  Student remains seated and does not unbuckle or touch his belt buckle again.  (S-1; S-2; S-8; Mother, 55; Brissette, 104).

22.  Mother believes that Student’s behavior towards the bus driver was predictable based upon her review of the video and her intimate knowledge of Student.  She observed that Student became more anxious as he was not wearing his headphones, had been on the bus for a long time, and was distracted by the loud CB radio.  Based upon the pitch of his voice and his facial expressions, Mother believes that had driver been trained to read Student’s “cues”, the incident may have been averted.  (Mother, 55-56).

23. On January 28, 2025, in response to the District’s email asking NRT if it would agree to transport Student without a Buckle Buddy, Mother recalls NRT initially responded to confirm it would do so but would require Student to wear a Buckle Buddy if another incident occurred.  Then less than an hour later, NRT sent a further email advising that Student needed to wear a Buckle Buddy for all future transportation.  However, the emails submitted by both parties for this date only show one reply by NRT advising a Buckle Buddy was required.  (P-6; S-8; Mother, 43-44).

24. Upon learning of the Buckle Buddy requirement, Mother expressed concerns about Student’s safety and her fear that he could potentially become trapped in the van if the driver was incapacitated.  She asked if there were any alternatives to address the safety concerns without locking Student in his seat and requested that the District look into using another transportation company.  Mother followed up with several emails to the District about exploring other transportation companies.  (P-5; P-6; S-8; Mother, 42, 47; Brissette, 104-08).

25. Student has never unbuckled his seatbelt with Mother while driving in a moving car.  (Mother, 59-60).

26. On February 13, 2025, the Team convened for Student’s three-year reevaluation.  Student continued to be found eligible for special education.  When the Team reached its discussion about transportation, the District proposed to transport Student on a van using a Buckle Buddy as a result of two recent safety incidents.  Parents disagreed with requiring a Buckle Buddy and expressed their concerns as to what would happen if Student was trapped in an emergency.  Parents requested the monitor be placed back on the van if the Buckle Buddy was going to be required, or that Melmark behavioral staff develop a fading plan to support its gradual elimination.  (S-9; Mother, 45-47).

27. According to Ms. Brissette, the second incident referred to during the Team meeting had taken place within the month prior to January 22, 2025.  Student was getting off the van, upon his arrival at school, and had reached forward and made physical contact with the driver[9].  Since, at that time, the van was stopped, and Student was timely disembarking, this incident did not take place during any time he was required to be buckled.  (S-9; Brissette, 112-14).

28. The 25-26 IEP was sent to Parents on February 25, 2026.  Part of the Team vision includes Student “increas[ing] his ability to tolerate others while riding in vehicles and remain[ing] safe while being transported”.  For Transportation Services, the IEP calls for a special transportation vehicle “to and from school on [Student’s] own van with a buckle buddy”.  (P-10; S-10).

29. The 25-26 IEP also removed all of Student’s 1:1 services.  (P-10; S-9; S-10).

30. On March 11, 2025, Parents partially rejected the 25-26 IEP noting that they “reject the transportation section that notes [Student] requires a buckle buddy”.  They also attached a “Parent Comment” indicating that they considered the Buckle Buddy to be a restraint used to “punish [Student] for a past, one-time incident”.  They further explained that restraints are to be used to prevent immediate harm to a student or another person during an incident, not to avoid potential behavior.  Parents believe Student is a “child who made a mistake, not an animal”.  They suggested alternative options such as a divider between the front and back seats of the van and reinstatement of the monitor, as Student had never unbuckled his seatbelt when the monitor was present.  (P-10; S-10, Mother, 43, 45-46).

31. Parents provided photographs of the “divider” option they were suggesting to the District.  They had observed this option being used at Melmark during drop off, in a vehicle used by another student.  Mother believes this is an appropriate alternative as it will keep the van driver safe.  (Mother, 56-57).

32. Ms. Brissette assisted District staff member, Ms. Cefalo (Parents’ primary contact) in researching Parents’ suggestion of a “divider”.  Ms. Brissette spoke with Father on March 20, 2025, to learn more about the “divider” proposal.  She also contacted NRT about the option, reached out to several transportation vendors the District uses to determine if they had any dividers in their vehicles, and called Melmark to identify the company Parents may have seen using it.  NRT informed Ms. Brissette that a divider could not be installed because it would require a modification to the vehicles that is prohibited by Massachusetts Department of Transportation regulations.  (S-8; Brissette, 92-95, 108).

33. Ms. Brissette did not contact any other vendors to ask if they would transport Student without a Buckle Buddy, despite Parents’ request that the District do so[10].  She explained that the District supported the use of the Buckle Buddy for safety reasons, and asking another vendor to transport Student without one would not solve the safety concern of ensuring that Student stays buckled in his seat while in transit.  She did not, however, discuss her reasoning with Parents.  (Brissette, 89, 95, 105-06, 108-09).

34. According to Ms. Brissette, bus monitors are unable to have any physical contact with students and thus would not be able to keep Student from unbuckling his seatbelt as he did on January 22, 2025.  The role of bus monitors is to communicate and interact with students and observe and report on behavior, but they cannot touch or otherwise restrain students.  (Brissette, 98).

35. According to Mother, at some point after the Team meeting, the District informed them that Melmark agreed to write a fading plan.  However, a few hours later, the District’s attorney emailed Father to advise the District did not agree to a fading plan option.  (Mother, 46). 

36. Mother acknowledges all NRT transportation vans carry seatbelt cutters.  On February 24, 2025, Ms. Cefalo emailed Mother to confirm that NRT staff receive emergency training and use seatbelt cutters in emergency situations.  Ms. Brissette also explained that NRT’s accident protocol requires the driver to call dispatch who will then call 911 to summon the police to the scene.  (P-7; S-8; Mother, 51; Brissette, 96-98). 

37. Mother would be concerned if Student was out of his seat and the van had to stop suddenly.  She agreed that a divider would not address this concern.  She also agreed that it is not uncommon for a vehicle to have to stop short when Student is traveling to or from school as the typical route involves traveling on Interstate Route 93, in heavy traffic.  However, although Mother acknowledged that Student had previously run from the van to the street, she testified that she was not concerned that he would do so in the event of an accident while he was being transported.  (Mother, 54, 57-58).

LEGAL ANALYSIS:

1. Free Appropriate Public Education

Both federal and state special education laws guarantee all students with a disability a right to a FAPE[11].  A FAPE is “special education and related services [consisting of] both ‘instruction’ tailored to meet a child’s ‘unique needs’ and sufficient ‘support services’ to permit the child to benefit from that instruction”[12] that must be provided in the “least restrictive environment[13]”.  Provided the proposed IEP is “reasonably calculated” to deliver “educational benefits”, and “to enable the child to make progress appropriate in light of the child’s circumstances” the school district has met its IDEA obligations[14].   An IEP must be “custom tailored” and “individually designed” to be “reasonably calculated to confer a meaningful educational benefit” to a student[15].  To constitute a FAPE, a student’s educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”[16] and the student’s educational potential[17].  

2. Specialized Transportation

According to 603 CMR 28.05(5), as part of the process of developing an IEP, the Team shall “determine whether the [eligible] student requires transportation because of his or her disability in order to benefit from special education”.  If so, it shall be noted on the IEP and the transportation is considered a “related service”[18].  The Team must also “determine necessary modifications, special equipment, assistance, need for qualified attendants on vehicles, and any particular precautions required by the student and shall document such determinations in the student’s IEP”[19].  “Particular precautions” may include, for example, “… whether the student requires assistance in or out of the home, on or off of the vehicle, and in or out of the school….” and “… if the student has a particular need or problem that may cause difficulties during transportation, such as … behavioral concerns, or communication disabilities”[20].  Any such needed assistance or noted supports must be provided[21].

3. 603 CMR 46.00

The use of restraint on students in publicly funded schools other than in facilities operated by the Department of Youth Services, the Department of Mental Health, the Department of Public Health, or County Houses of Correction is governed by the provisions of 603 CMR 46.00, entitled “Prevention of Physical Restraint and Requirements if Used” (“Restraint Regulations).  The BSEA has previously concluded that it has jurisdiction to consider and interpret the Restraint Regulations (albeit an earlier version thereof), and I agree with that analysis[22].  According to these regulations, mechanical and medication restraints are prohibited in any public education program, prone restraints are prohibited except in certain enumerated circumstances, and physical restraints, including permitted prone restraints, are “considered an emergency procedure of last resort” and prohibited except in certain explicit instances, provided the restraint is administered in accordance with the regulations[23].

4. Burden of Persuasion.

In a special education due process proceeding, the burden of proof is on the moving party[24].  If the evidence is closely balanced, the moving party will not prevail[25]. 

DISCUSSION[26]:

Student’s eligibility for special education based on his autism and intellectual impairment and his qualification for the related service of specialized transportation is not in dispute.  Student’s behavioral struggles and needs are well established, and both the District and Melmark have indisputably continued to support him appropriately, including through implementation of FBA recommendations[27].  This matter involves only the discrete question of whether Student requires the special equipment of a Buckle Buddy during transit, to receive a FAPE.  First, I note at the outset that I agree with the District that the Buckle Buddy itself, if used for its intended purpose, does not constitute a restraint as that term is defined in the Restraint Regulations[28].  No physical contact with a student occurs using a Buckle Buddy, so it cannot be considered a physical restraint or a prone restraint (a type of physical restraint).  Further, as a physician’s prescription is not required prior to using a Buckle Buddy, it is not a medication restraint[29], thus, it could only be considered a mechanical restraint[30]. 

However, the definition of mechanical restraint specifies that it “does not include devices implemented by trained school personnel … and [ ] used for the specific and approved positioning or protective purposes for which such devices were designed.  Examples of such devices include: … vehicle safety restraints when used as intended during the transport of a student in a moving vehicle” (emphasis added).  The evidence in the instant matter clearly demonstrates that the Buckle Buddy is a protective vehicle safety device to be used during Student’s transport in a moving vehicle, by trained school personnel (i.e., the driver), thereby falling wholly within this regulatory exclusion[31]. 

To conclude otherwise, would contravene the IEP Teams’ required duty to identify and provide the “necessary modifications, special equipment, assistance [or] need for qualified attendants on vehicles, and any particular precautions required by [a] student” who qualifies for the related service of specialized transportation[32].  It would also mean that under the restraint regulations, Buckle Buddies could never be used by public school districts during transportation of students in moving vehicles, contrary to common and accepted practices that exist throughout the Commonwealth and in the District[33].

Parents are also concerned that the Buckle Buddy inappropriately punishes Student for a mistake.  Certainly, Student’s interaction with the van driver that day cannot be disregarded or overlooked; however, he was not disciplined for that behavior, nor would discipline have been justified given the substantial evidence indicating that his behavior was a result of his disabilities. 

The issue in this case is not about Student’s physical contact and aggressions towards the van driver, per se.  Rather, this case involves the issue of the appropriate way to address the current safety concern that exists in light of Student’s unbuckling himself, moving around the vehicle while it was in motion, and threatening his own and the driver’s safety.  Student’s aggression towards the van driver on January 22, 2025, distracted her and dangerously impacted her continued ability to drive and respond to other vehicles around them.  That Student re-buckled himself and has not engaged in this behavior previous to or since that instance, does not negate his actions in unbuckling himself in that moment, and becoming physically aggressive with the driver, without apparent awareness of the safety risk involved with these actions. 

Although I empathize with Parents’ initial hesitations and worries about use of the Buckle Buddy, their alternatives do not address the concern that Student might unbuckle himself in a moving vehicle[34].  While a divider addresses the issue of Student’s improper physical aggression toward the van driver, it does not ensure Student remains buckled during transit and is not permitted in Massachusetts school transportation vehicles.  Nor does utilizing another transportation company resolve the safety concern.  Similarly, a monitor, while potentially mitigating the risk, does not prevent Student from unbuckling himself in a moving vehicle.  Even if the monitor was familiar to Student and behaviorally trained, the record reveals that Student aggresses towards others when he is frustrated, even in the presence of his familiar Melmark staff, as evidenced by his lunging at Mr. Tentindo during the first testing session. 

Now that Student has demonstrated that he can and will unbuckle himself in a moving vehicle, there is a substantial increase to his risk of harm in an accident.  The District is aware of the increased risk and must take appropriate mitigating measures to limit it.  To do otherwise, would be a dereliction of its responsibilities and duty of care to Student both generally and under the IDEA.  It is also contrary to the District’s obligation to provide Student with a FAPE[35].

The Team properly considered the safety risk to Student if he is not provided with a Buckle Buddy while being transported, based on his own previous actions and his well-documented and undisputed behavioral presentations, as noted in the FBA, the Educational Evaluation: Part A assessment, the Psychological assessment and the 25-26 IEP.  Student’s behavioral triggers involve changes in schedule or routine, unfamiliar people, and unpredictable behavior by others, all of which have, and could continue to happen during Student’s transportation.  While the challenging behaviors do not occur with a high frequency, when they do occur, the accepted portions of Student’s IEP indicate they involve aggression that has the potential to harm Student or others “significantly”.  The aggressions take the form of charging towards staff, kicking, head directed aggression, biting and hair pulling behavior, many aspects of which were involved in Student’s interaction with the driver on January 22, 2025.  Thus, given the substantial evidence before the Team pertaining to Student’s behavioral concerns, from evaluative sources, staff reports, and Student’s own documented behaviors, it was appropriate for the Team to conclude that Student requires the special equipment of a Buckle Buddy to support him with ensuring his seatbelt remains buckled in a moving vehicle, as part of his special education transportation related service[36]. 

While I understand and am sympathetic to Parents’ regarding the potential for Student to be trapped in his seatbelt if the driver were to become incapacitated, the likelihood of Student being in/causing an accident if unbuckled without a Buckle Buddy, is greater than the scenario Parents fear[37].  The possibility of an accident occurring while Student is being transported is legitimate, a potentiality that Parents acknowledge, and one for which the District must plan.  Parents’ understandable, but less probable concern, is further mitigated by the driver’s carrying of a seatbelt cutter, and the protocol and training that all drivers undergo with regard to reporting emergency situations.  As such, after a review of the evidence, and considering the thoughtful arguments of both parties, I conclude that Student not only requires a Buckle Buddy to receive a FAPE, but that failure to provide him with one would be inappropriate.

ORDER:

The 25-26 IEP provision calling for Student to use a Buckle Buddy when traveling in his specialized transportation provides Student with a FAPE. 

Respectfully submitted,

By the Hearing Officer,

/s/ Marguerite M. Mitchell

Marguerite M. Mitchell

June 3, 2025

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only. 

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” 

Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1^st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint for review in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

ConfidentialityIn order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

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[1]   Exhibit P-9 was admitted over the objection of the District. 

[2]   Exhibits S-1 and S-2 were admitted over the objection of Parents.  Exhibit S-2 is a video recording.

[3]   Exhibits J-2 and J-3 are video recordings.

[4]   I have carefully considered all the evidence and testimony presented in this matter.  I make findings of fact, however, only as necessary to resolve the issue(s) presented.  Consequently, all evidence and all aspects of each witness’ testimony, although considered, is not included if it was not needed to resolve said issues.

[5]   Ms. Brissette also worked in this capacity for another public school district for three years.  She holds a master’s degree in special education.  Her job responsibilities include overseeing the special education services and implementation of the IEPs for Students who are placed in out of district programs.  She regularly communicates with families, school personnel and transportation companies to coordinate transportation needs for students attending out of district schools.  (Brissette, 86-88).

[6]   Based upon other evidence in the record, and Mother’s subsequent testimony that Student had been on the van for a long time, it appears he actually left school at approximately 2:10 p.m.  (Mother, 55).

[7]   This is Mr. Tentindo’s first year working for the District, but he has worked as a certified school psychologist in other public schools for the past 17 years.  His job responsibilities include administering psychoeducational evaluations and maintaining a counseling caseload of 30-35 students.  He estimates that he has conducted well over a thousand psychoeducational evaluations.  (Tentindo, 69-70). 

[8]   Although the report notes the evaluation test date to be December 13, 2024, Mr. Tentindo testified that this was a typographical error, and the evaluation occurred on January 22 and 23, 2025.  (Tentindo, 71).

[9]   Parents claim that the driver had engaged inappropriately with Student preceding this interaction.  I make no findings with regard to this incident, as it did not involve Student unbuckling his seatbelt in a moving vehicle and thus does not support the District’s safety concern behind requiring a Buckle Buddy. 

[10]   Ms. Brissette confirmed that the District’s contract with NRT was not exclusive, meaning that the District could use other transportation vendors besides NRT, if needed.  (P-3; Brissette, 110-11).

[11]   20 USC 1400, et seq.; M.G.L. c. 71B; 34 CFR 300.000, et seq.; 603 CMR 28.00 et seq;  see 20 U.S.C. §1400 (d)(1)(A) (The first purpose of the IDEA is “to ensure that all children with disabilities have available to them a [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living”).

[12]   20 USC 1401(9), (26), (29); C.D. v. Natick Pub. Sch. Dist., et al., 924 F.3d 621, 624 (1st Cir. 2019), quoting Fry v. Napoleon Cmty. Schs., 580 US 154, 158 (2017).

[13]   20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.01 and 28.06(2)(c).

[14]   C.G. and B.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008) quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); see Endrew F. ex. re. Joseph F. v Douglas County Sch. Dist., RE-1, 580 US 386, 399-403 (2017).

[15]   Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012); Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086 (1st Cir. 1993); D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

[16]   Endrew F., 580 US at 399-400, 403; see Johnson v. Boston Pub. Schs., 906 F.3d 182, 194-95 (1st Cir. 2018) (holding that Massachusetts’ “meaningful educational benefit” standard adopted in D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012), comports with the Endrew F. standard).

[17]   See Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 29 (1st Cir. 2008).  

[18]   603 CMR 28.05(5)(b).

[19]   603 CMR 28.05(5)(b)(1).

[20]   603 CMR 28.05(5)(b)(1)(b), (c).

[21]   Id.

[22]   See In Re: Springfield Public Schools and Eric, BSEA No. 08-4171, 14 MSER 334 (Ruling, Oliver, 2008) (finding as a threshold matter that the “interpretation of the physical restraint regulations for a student such as Eric is directly related to the evaluation, placement, IEP, provision of special education (FAPE) and procedural protections of state and federal special education law for students with disabilities” (internal citations omitted).

[23]   603 CMR 46.03.

[24]   Schaffer v. Weast, 546 US 49, 56-57, 62 (2005).

[25]   Id. (placing the burden of proof in an administrative hearing on the party seeking relief).

[26]   In making my determinations, I rely on the facts I have found as set forth in the Findings of Facts, above, and incorporate them by reference to avoid restating them except where necessary.

[27]   To that end, this decision should not be construed to compromise the District’s work towards the 2024 Team goal of transporting Student with other students.  Assuming the Team feels that goal remains appropriate, it can be pursued regardless of Student’s use of a Buckle Buddy.  Also, while Parents are not obligated to transport Student, should they choose to do so, they remain entitled to reimbursement for mileage.  See Special Education Policy Memo SY2022-2023-1 “Mileage Reimbursement for Parents Under 603 CMR 28.07(6)” found at https://www.doe.mass.edu/sped/advisories/memo20221.html#:~:text=Effective

%20July%2017%2C%202022%2C%20state%20employees%20became,prevailing%20rate%20per%20mile%20for%20state%20employees.

[28]   See generally 603 CMR 46.00.  I also agree with the District that if a Buckle Buddy were to qualify as a restraint, then any other device with a similar release procedure would also constitute a restraint, such as a medication bottle cap or child safety locks, both of which commonly exist in public schools and approved special education schools and whose use is indisputably not governed by the restraint regulations.

[29]   603 CMR 46.02; see 603 CMR 28.05(5)(b)(1).

[30]   Id.

[31]   Id.  Moreover, Parents’ argument that the regulatory exception to a mechanical restraint only applies to devices with a “prescription by an appropriate medical or related services professional”, fails to account for the “or” that precedes this clause, in the regulatory definition.  As the regulation establishes, devices “implemented by trained school personnel” are also potentially excludable.   

[32]   603 CMR 28.05(b).

[33]   603 CMR 46.03(1); see In Re: Hudson (explaining that “[w]hen the School and Parent learned that Student was unbuckling her seat belt while riding the bus, they agreed to installation of a “buckle buddy” to address the problem. Again, Parent accepted the IEP amendment incorporating this accommodation, and the parties do not dispute its appropriateness.”); Testimony of Brissette, 90.

[34]    See P.T. ex. rel. T. v. Jefferson Cnty. Bd. of Educ., 2005 WL 8158391, at *7 (N.D. Ala. 2005), aff’d sub nom. P.T. ex rel. Mrs. T. v. Jefferson Cnty. Bd. of Educ., 189 F. App’x 858 (11th Cir. 2006) (concluding that transporting a student with a harness contrary to the parents’ wishes provided the student with a FAPE, as no evidence of a lesser restrictive option that would otherwise address the safety concerns associated with the student’s tantrums, behavioral outbursts, throwing objects and attacking others while on a moving vehicle was presented and reasoning that “[o]f course the plaintiff does not want P.T. harnessed. No parent would. However, the defendant has an interest in protecting not only the safety of P.T., but the safety of the other students on the bus, the driver, and occupants of other vehicles and pedestrians”).

[35]   20 USC 1401(9), (26), (29); C.D., 924 F.3d at 624; see 603 CMR 28.05(5)(b).

[36]   603 CMR 28.05(5)(b)(1)(b), (c).

[37]   See In Re: Ferndale Pub. Schs., 51 IDELR 233 (SEA, MI 2008) (concluding that “the parent has not shown that the District’s use of the harness … is unreasonable under the circumstances of this case, and the unlikely scenario of an accident that incapacitates the bus driver yet traps the student too long for rescue by emergency personnel seems a remote possibility compared to the obvious danger posed by the student to both himself and the other occupants of the bus by his demonstrated behavior on several occasions”).